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JSTOR helps people discover, use, and build upon a wide range of content through a powerful research and teaching platform, and preserves this content for future generations. JSTOR is part of ITHAKA, a not-for-profit organization that also includes Ithaka S+R and Portico. For more information about JSTOR, please contact email@example.com. THE INTERNATIONAL COUET OF PRIZE On February 15, 1911, the Senate of the United States advised and consented to the ratification of the International Prize Court Convention 1 adopted by the Second Hague Peace Conference and signed by the American delegates October 18, 1907. Although transmitted to the Senate with the various Hague conventions on February 27, 1908, and favorably recommended by the President and Secretary of State, action upon the convention was deferred by the Committee on Foreign Relations because the convention in its original form involved an appeal from the Supreme Court of the United States to the international court at The Hague. This feature of the otherwise acceptable convention raised doubts as to its con- stitutionality, because Article 3, section 1, of the Constitution pro- vides that " the judicial power of the United States shall be vested in one Supreme Court." An appeal from the Supreme Court to the court at The Hague seemed to some inconsistent with this pro- vision, for a court can not be considered supreme if an appeal lies from its decisions. To this it may be answered that the court to be established at The Hague is not a court of the United States, and, therefore, is not contemplated by the Constitution; for the Hague court is a diplomatic tribunal for the settlement of questions which would otherwise be adjusted by diplomacy, or referred to a mixed commission specially constituted for their determination, or which if not determined by either of these methods, might result in war. To overcome this objection, Secretary Knox proposed, in a circular noted dated October 18, 1909, 2 a modification of the prize court con- vention, which, if accepted by the signatories of the original conven- tion, would modify it in such a way as to permit countries with constitutional difficulties of this nature to provide in the ratification of the convention that, instead of an appeal from their national courts and the possible reversal of their judgments, the original question i Printed in Supplement, 2:174. 2 Printed in Supplement, 4:102. THE INTERNATIONAL COURT OF PRIZE 303 involved in the controversy should be submitted to the prize court at The Hague, and that the tribunal should award damages if the action of the belligerent were considered illegal or unjustifiable. This proposal of the Secretary of State has been accepted by the signatories of the prize court convention and is embodied in an additional protocol, signed at The Hague on September 19, 1910, 3 and subsequently adhered to by the parties to the original convention. The provisions of the protocol to which reference has been made are as follows : Article 1. The powers signatory or adhering to The Hague conven- tion of October 18, 1907, relative to the establishment of an international court of prize, which are prevented by difficulties of a constitutional nature from accepting the said convention in its present form, have the right to declare in the instrument of ratification or adherence that in prize cases, whereof their national courts have jurisdiction, recourse to the international court of prize can only be exercised against them in the form of an action in damages for the injury caused by the capture. Article 2. In the case of recourse to the international court of prize, in the form of an action for damages, Article 8 of the convention is not applicable ; it is not for the court to pass upon the validity or the nullity of the capture, nor to reverse or affirm the decision of the national tri- bunals. If the capture is considered illegal, the court determines the amount of damages to be allowed, if any, to the claimants. It will be noted that the first article quoted confers upon the Powers the right to declare in the instrument of ratification that recourse to the International Court of Prize can only be exercised against them in the form of an action in damages for the injury caused by the capture, and in advising and consenting to the original convention and the additional protocol the Senate provided that " in the instrument of ratification the United States of America shall declare that in prize cases recourse to the International Prize Court can only be exercised against it in the form of an action in damages for the injuries caused by the capture." 4 Many and disinterested observers of the results actually achieved by the Second Hague Conference regard the establishment of an 3 Printed in Supplement, p. 95. * See Senate Resolution, Supplement, p. 99. 304 THE AMERICAN JOURNAL OF INTERNATIONAL LAW International Court of Prize as its greatest achievement, and there is much to be said for this point of view. For the past few centuries, earnest and progressive souls, intent upon drawing the world closer together, actually as well as figura- tively, into one great family, and establishing means for the peaceful settlement of any difficulties that arise among its members, have proposed that an international court be created with power to decide as a court of justice or arbitration, controversies presented, and, by the very force of its existence, to compel obedience to its decrees. The hope of the dreamer has been realized in large measure and the world is now possessed of its first international judiciary. Had there not, however, been other and material reasons for its establishment, an international court of prize would still be the favorite project of the enthusiast, for the Second Conference, as well as its illustrious predecessor, was not composed of idealists, but of trained diplomats, men of affairs, and experts in international law, whose duty was to the present and who were well content to leave to the future its own problems. The prize court appealed to them as a practical method of solving difficulties with which nations were con- fronted, for the outbreak of war lays a heavy hand upon neutrals as well as belligerents, closing to the neutral, markets which in peace were his, and subjecting, under certain conditions, his commerce upon the high seas to visit and search, capture and ultimate con- fiscation, if a belligerent is minded to stand upon his rights and strong enough to enforce them. The belligerent determines what is contraband, blockades the port of his enemy, and frames the rules for neutral observance. 5 Neutral property falling within the inhibited class is seized and the vessel and its cargo destined to a port of blockade is captured, according to the rules which the neutral did not frame, and adjudged lawful prize by a court in which he is not represented other than as a suitor who follows his property and requests its restoration from one who is alone entitled to pass upon the legality or illegality of his own s The effect of the Declaration of London ( printed in Supplement to this Journal, 3:179) is not considered in this connection as it has not been ratified as yet by Great Britain or the United States. THE INTERNATIONAL COUBT OF PRIZE 305 acts. It is thus seen that the effects of war are not confined to the immediate belligerents, but that they extend to neutral commerce and neutral industry, that the remotest parts of the world are involved and its most innocent inhabitant may be affected in his purse and in his fortune by a war which he could not prevent and which he can neither control nor terminate. It is therefore clear that the neutral has an interest that war shall not take place, but if unfortunately it does exist, it is of the greatest moment to him that the legal- ity or illegality of his actions involving as they do title to his prop- erty and affecting his standing, both at home and abroad, be not adjudged by a tribunal of the captor, in which the neutral appears only as a suitor, and where the presumption is in favor of the captor and against the neutral ; but that an international court be created, in which the validity or invalidity of the acts of a belligerent, in so far as they affect neutral property, shall be decided by neu- trals, in which, however, the belligerent shall be represented, so that neither belligerent nor neutral be condemned without a hearing and without an opportunity in the court room by his advocate and in the council chamber by his judge, to explain his motives, defend his conduct, and insist that justice be administered in all cases. These statements are so self-evident as to amount to truisms, and therefore need neither argument nor illustration to enforce their acceptance. Nevertheless, an illustration taken from the history of our country when it was still an infant republic, unable to defend itself against aggression, except by the reason and the justice of its cause, may be pertinent. The unjustifiable interference with American commerce on the high seas by both Great Britain and France, in the wars of the French Eevolution, the impressment of American seamen taken by force from innocent merchantmen by the strong hand of Great Britain, led to the War of 1812, which settled nothing and unsettled much, and war would have been as improbable as it would have been needless, had there been an international court of prize in which the United States was represented and to which it could have presented its just claims before impartial, conscientious, well-trained and experienced judges. The creation of an institution which would thus preserve peace by averting future war was surely 306 THE AMERICAN JOURNAL OF INTERNATIONAL LAW appropriate employment for a peace conference, even although the existence of the institution presupposes war. The prize court to be constituted at The Hague is intended to be and is, a court of appeal, for it presupposes a decision of a municipal prize court, from which an appeal may be taken. It might have been better, and it certainly would have avoided conflict with national courts of justice, if the contemplated institution had been a court of first instance, that is to say, if the belligerent had bound himself by the convention to resort in the first instance to the International Court of Prize for the condemnation of the prop- erty which he had seized and which, under existing international law, might properly be confiscated. But the desire of the framers of the convention was to correct the abuse of a system, not to abolish it, and permitting the court of the captor in the first instance to determine the validity or the invalidity of the capture, with the right of appeal to the international tribunal, had the great advantage of utilizing existing machinery before subjecting it to international supervision and control. The question may well arise, and did actually arise at the conference, whether an appeal should be taken directly from an unsatisfactory judgment of the municipal court of first instance, or whether an appeal should first lie to a superior or the ultimate national court, before calling into action the machinery at The Hague. There is much to be said for each question, for compelling a neutral who is ultimately forced to The Hague to exhaust his remedies in national courts, by appealing to the higher authority, is to saddle him with a heavy burden of expense and to cause him delay which may injuriously affect the property involved. On the other hand, it is not to be supposed that an error in the court of first instance will be uncorrected by the national court of appeal, espe- cially as a resort to the International Court of Prize at The Hague may well act as an incentive to the national judiciary to consider with the greatest of care the facts of the case and the principles of law applicable, lest the judgment be reversed by a foreign jurisdic- tion in which the national element, if present, is far from determina- tive. The German delegation was impressed by the loss of time THE INTERNATIONAL COUET OF PRIZE 307 which the litigant would suffer by an appeal to a national court of the captor, whereas Great Britain and the United States preferred an appeal to their ultimate courts of appeal in prize cases for the twofold reason that national feeling might resent the interposition of an international court before an opportunity had been given to the national judiciary to revise or reverse its judgment; and that the judgment of their ultimate courts of appeal would be so care- fully argued, reasoned and acceptable that an appeal to The Hague would be unnecessary, or, if taken, that the judgment appealed from would be of great aid and assistance to the International Court of Prize in its consideration of the case. Mr. Choate proposed as a happy and acceptable compromise that the question of appeal should be left to each of the signatory Powers, to prescribe by local legislation whether one appeal should lie to its national courts or whether the appeal might be taken from the municipal court of first instance to The Hague. That the proceed- ings of the national courts should not be so long drawn out as to amount in themselves to a denial of justice, the period of two years was fixed within which they should pronounce final judgment. These provisions appear in the following articles from the con- vention, which are quoted in translated form: Jurisdiction in matters of prize is exercised in the first instance by the prize courts of the belligerent captor. (Art. 2.) The national courts can not deal with a case in more than two in- stances. The municipal law of the belligerent captor shall decide whether the case may be brought before the international court after judgment has been given in first instance or only after an appeal. If the national courts fail to give final judgment within two years from the date of capture, the case may be carried direct to the international court. (Art. 6.) Admitting that an appeal lies from the national to the international court, it is of fundamental importance to determine first, from what judgments the appeal may be taken; second, the party entitled to appeal; third, whether the appeal shall be taken upon a question of law or a statement of fact; and, fourth, the effect of the interna- tional judgment upon the judgment of the national court from which the appeal is taken. 308 THE AMEKICAN JOUBNAL OF INTEBNATIONAL LAW The intention of the conference was not to provide a court for belligerents in relation to their subjects or citizens. It sought to provide, and actually did create, a court for neutrals in which the validity or invalidity of the capture or injury to neutral property might be impartially determined. Therefore, questions arising be- tween the belligerent and his subjects or citizens should be settled in the national court and not litigated in the international tribunal ; nor should questions between belligerents or their subjects or citizens be submitted to the international court unless neutral interest be involved or unless the injurious act is in violation of a treaty or convention between the belligerents, for the strict observance of international agreements is of interest to neutrals whether or not neutral property be involved. The question of appeal is briefly and admirably discussed in Article 3, the material portions of which are quoted : The judgments of national prize courts may be brought before the International Prize Court: 1. When the judgment of the national prize courts affects the prop- erty of a neutral power or individual ; 2. When the judgment affects enemy property and relates to: (a) Cargo on board a neutral ship; (b) An enemy ship captured in the territorial waters of a neutral Power, when that Power has not made the capture the sub- ject of a diplomatic claim; (c) A claim based upon the allegation that the seizure has been effected in violation, either of the provisions of a conven- tion in force between the belligerent Powers, or of an enact- ment issued by the belligerent captor. There can be little doubt that an appeal is justifiable where the judgment affects the property of a neutral Power or individual. A little reflection and analysis lead to the conclusion that the resort to the International Court of Prize is equally justifiable when the judgment, although primarily affecting enemy property, nevertheless involves a neutral interest. Therefore, a judgment of the belliger- ent, affecting enemy cargo on board a neutral ship should be subject to re-examination because of the interest which the neutral has in the determination of the question by reason of the neutral vessel involved. THE INTERNATIONAL COURT OF PRIZE 309 In like manner, it is eminently proper that the court take juris- diction when an enemy ship is captured in the territorial waters of a neutral Power, because belligerents may prosecute hostilities within neutral jurisdiction. It may well be that the captured vessel has no reason for complaint because the declaration of war subjects it to capture, and the exact locality of seizure and capture is but an incident and detail so far as the belligerents are concerned. As, however, the action of the belligerent affects neutral rights and is an attack upon neutral sovereignty, it follows that, although the property involved belongs to the enemy, the neutral is entitled to the protection accorded by an international tribunal. In the same way a claim based upon the provisions of a conven- tion or of an enactment issued by the belligerent captor is within the scope and therefore properly within the jurisdiction of the Inter- national Court of Prize, because a convention between the belligerents is an international act, in which neutrals, as well as belligerents, are interested, and the effects of an enactment issued by the belligerent captor are not confined to the belligerent; for the enactment, how- ever legal it may be in the formal sense of the word, may either be a violation of international law or unduly burdensome to neutral interests. In the next place it was and is of great moment to determine whether the appeal may be taken solely by the nation on behalf of its subjects or citizens, or whether the injured individuals may themselves institute proceedings. States are said to be subjects of international law, and the individual as such has no standing in the law of nations. There are, however, two sides to the question, for it is common knowledge that the foreign office moves slowly and much time is consumed before the claim of the individual is pre- sented to the foreign government, even if approved. The depriva- tion of his property is a hardship to the individual and the direct and indirect losses are very great. The municipal courts are open to the individual for the redress of a real or fancied wrong, and it would seem by analogy that the individual should be permitted to test his right and secure the redress of a wrong, without the ex- pressed consent or permission of the government. Yet, on the other 310 THE AMERICAN JOURNAL OF INTERNATIONAL, LAW hand, the case may involve international interests and its adjudica- tion will therefore be of great moment to the state; or, again, the government may so far wish to espouse the cause as to appear as litigant in place of its subject or citizen and thus secure to the indi- vidual a more careful and more adequate presentation of his claim. The conference, therefore, while recognizing the right of the indi- vidual, subjected its exercise to national control. In like manner, it would seem that a subject or citizen of the belligerent government should be allowed to appeal to the Interna- tional Court of Prize in the cases specified in Article 3 previously quoted. As, however, the capture of his property in neutral juris- diction concerns primarily the neutral, and is often a matter of great delicacy, it is not to be supposed that the neutral nation would allow the question to arise upon private initiative, as the result of the litigation might embarrass the neutral country and even involve it in the controversy. Such are the provisions of the convention as appears from the following article : An appeal may be brought : 1. By a neutral Power, if the judgment of the national tribunals injuriously affects its property or the property of its nationals (Article 3, 1), or if the capture of any enemy vessel is alleged to have taken place in the territorial waters of that Power (Article 3, 2, b) ; 2. By a neutral individual, if the judgment of the national court injuriously affects his property (Article 3, 1), subject, however, to the reservation that the Power to which he belongs may forbid him to bring the case before the court, or may itself undertake the proceedings in his place ; 3. By an individual subject or citizen of an enemy Power, if the judgment of the national court injuriously affects his property in the cases referred to in Article 3, 2, except that mentioned in paragraph b. (Article 4.) The intention of the framers of the convention was to establish a court of appeal and invest it with the power and authority necessary to decide the controversy. Therefore, it may decide on appeal that the judgment appealed from was wrong, either in fact or in law, and, having reached that conclusion, itself ascertain and determine the rights of the parties. (Article 3.) In considering the effect of the international judgment upon the THE INTERNATIONAL COURT OF PRIZE 311 judgment of the national court from which the appeal is taken, it is necessary to hear in mind the fact that the court at The Hague was intended to be, and is, a court of appeal, and as such court of appeal, passes directly upon the judgments submitted to it for its consideration. If the judgment of the lower court be affirmed there is no difficulty; if, however, the judgment be reversed, the question arises as to the exact relation between the international and national judgment, a question which may involve constitutional difficulties and give rise to no little trouble. An international court of appeal is a novelty, and is, in reality, a supreme court of appeal for prize cases, binding the world because the world, so to speak, is a party to its creation and is represented in it. Its decision as a court of appeal is final, and if the judgment of the national court is irrecon- cilable with it, the judgment of the national court is reversed, and by acceding to the convention the country from whose court the appeal is taken pledges its good faith to give full force and effect to the judgment on appeal. If the two judgments are inconsistent in part, the decision of the international court is, in simple terms, a reversal in part. It would have been possible, however, to accom- plish the same purpose without creating a court of appeal, thus avoiding a possible conflict between the national and international court, and questions of constitutional law which may arise in some countries, or without endangering the amour propre of a country, which might suffer where the national judgment is reversed by an international court. For example, it would have been possible and feasible to have provided that, whenever a nation or litigant was dis- satisfied with the decision of the municipal court in a prize case, the question involved, rather than the judgment of the national court, be submitted to the international court for a new trial of the case upon its merits. It is true that the national judgment could not escape examination and criticism because it is by virtue of the alleged denial or miscarriage of justice that the question is litigated anew. At the same time, the judgment would not be before the court for reversal, and the judgment of the court would simply be a judgment upon the case as actually presented upon the retrial, with- out affirming or reversing the national judgment. 312 THE AMERICAN JOURNAL OF INTERNATIONAL LAW Impressed by the importance of these considerations, Secretary Root instructed the American delegates to the recent Naval Con- ference at London to propose An additional article or protocol for the consideration of and eventual acceptance by the conference, by which each signatory of the convention of October 18, 1907, shall possess the option, in accordance with local legislation, either to submit the general question of the rightfulness of any capture to the determination of the International Prize Court, or to permit an appeal from the judgment of a national court in a specific case direct to the International Prize Court as contemplated by the convention of October 18, 1907. In the view of the Department the following draft would be not merely satisfactory, but calculated to remove the objections made to the estab- lishment of the International Court of Prize: Any signatory to the convention for the establishment of an Inter- national Court of Prize, signed at The Hague on October 18, 1907, may provide in the act of ratification thereof, that, in lieu of subjecting the judgments of the courts of such signatory Powers to review upon appeal by the International Court of Prize, any prize case to which such sig- natory is a party shall be subject to examination de novo upon the ques- tion of the captor's liability for an alleged illegal capture, and, in the event that the International Court of Prize finds liability upon such examination de novo, it shall determine and assess the damages to be paid by the country of the captor to the injured party by reason of the illegal capture. Acting upon these instructions, the American delegation was able to secure the adoption of the following recommendation, which, if universally or generally accepted, would obviate any constitutional objection to the establishment of the court: The delegates of the Powers represented at the Naval Conference which have signed or expressed the intention of signing the convention of The Hague of the 18th October, 1907, for the establishment of an International Prize Court, having regard to the difficulties of a constitu- tional nature which, in some states, stand in the way of the ratification of that convention in its present form, agree to call the attention of their respective governments to the advantage of concluding an arrangement under which such states would have the power, at the time of depositing their ratifications, to add thereto a reservation to the effect that resort to the International Prize Court in respect of decisions of their national tribunals shall take the form of a direct claim for compensation, provided always that the effect of this reservation shall not be such as to impair the rights secured under the said convention, either to individuals or to their governments, and that the terms of the reservation shall form the THE INTERNATIONAL, COUET OP PEIZE 313 subject of a subsequent understanding between the Powers signatory of that convention. As the result of diplomatic negotiations, the signatories of the original convention have agreed to modify it by an additional pro- tocol in the sense of the above instructions as set forth by Secretary Knox in his circular note of October 18, 1909, and the obstacle to the acceptance of the original convention by the United States was fortunately removed. The question, however, would still arise as to the relation between the national and international judgment. From one standpoint there is no relation between them, for one is the decision of a municipal, the other, of an international court. But we can not stop here, for, by submitting the case in question to a retrial at The Hague, the good faith of the litigating nations is pledged to accept and comply with its decision. If the award sounds in damages it is necessary that the damages be paid, which may involve action by the Parlia- ment, the Congress, or Chamber of Deputies. For all practical purposes the national judgment has been reversed if the judgment of the international court is opposed to and inconsistent with it ; but in a technical sense, the national judgment would still stand because it was not submitted to the international court for revision and be- cause the international court would only pass upon the question as if it were a court of first instance. The national judgment is thus technically unaffected and may serve as a precedent in a similar sub- sequent case. For example, in The Circassian, 2 Wallace, 135, de- cided by the Supreme Court in 1864, it was held that a blockade of New Orleans was not raised by land occupation of the port, and such decision was followed in the like case of The Adula, 176 U. S. 361, arising out of the recent Spanish-American war, even although the question involved in The Circassian had been submitted to the Mixed Commission of 1872 and decided adversely to the judgment of the Supreme Court. It is impossible, therefore, to consider The Circassian as an international authority, even although it was followed by our Supreme Court on a recent occasion, for a de- cision of the Mixed Commission of 1872 has shorn it of inter- national respect. From this simple statement, therefore, it appears 314 THE AMERICAN JOURNAL OF INTERNATIONAL LAW evident that a permanent international court to which international controversies are submitted, is bound by the very nature of things to be a court of appeal, even although it be not so constituted and bears a more modest or less alarming name. It matters little from an international standpoint whether or not it is a court of appeal. From the constitutional standpoint, however, its appellate character delayed its ratification by the United States, because of the constitu- tional provision heretofore mentioned that " The judicial power of the United States shall be vested in one Supreme Court," which, by a strict construction, may seem to negative an appeal from that august tribunal to the still more august court at The Hague. It is now necessary to consider the law to be administered in the court of prize. If the law of prize were codified and accepted by the nations parties to the prize convention, it would necessarily follow that the code should be administered, interpreted, and applied in the decision of prizes eases. But international law is not as yet codified, and although international in origin, character, and au- thority, it has suffered from national prejudice and bias in its interpretation. If there be a treaty or convention between the litigating parties, it is self-evident that their rights and duties would be measured by the terms of the obligation assumed. If there be no treaty or convention between them, yet, if the principle of international law involved is universally recognized, it would be the law of the parties, even although they may not have expressly consented to it, and would be properly administered by the court. If, however, it can not be said that the principle involved has been so generally recognized as to form a part of positive international law, and the interpretation and practice of the litigants differ, it is a nice question for the court to decide which practice to follow. For example, at the meeting of the Second Hague Conference there could not be said to be an international law of contraband and blockade, for there was an Anglo-American practice in each of these subjects as distinguished from Continental theory and practice. In the same way the doctrine of continuous voyage played a very con- spicuous part in American jurisprudence, and was applied indis- criminately to contraband and blockade. In England, continuous THE INTERNATIONAL COURT OF PRIZE 315 voyage was accepted as to contraband, although questioned as to blockade; whereas, the Continent with few exceptions, wholly re- jected the doctrine. In a question between the United States and Germany, submitted to the International Court of Prize for de- cision, which view would prevail? The American contention is recognized by repeated decisions of our Supreme Court. The Ger- man contention has the authority of Continental jurisprudence and is deeply rooted in Continental practice. To allow the court to determine the question is to invest it with the character of a legislature and to permit it slowly, but surely, to develop and codify the law of nations, just as English and American courts have codified the principles of the common law. It is diffi- cult, perhaps impossible, to prevent a court from developing and codifying the principles of law, but it may well be that nations regard some principles as of such fundamental importance as to be unwilling to intrust their codification to a body of jurists over which they have no control. Great Britain especially, which has made so large a part of prize law, was unwilling to intrust this function to the International Court of Prize, although it is a fact that its delega- tion forced the acceptance of this provision upon the Second Hague Conference. Subsequent reflection and the opposition of British publicists and naval experts caused Great Britain to call a confer- ence to consider the law to be administered by the court in certain specified cases of peculiar significance, and this conference, which met on December 4, 1908 and adjourned on February 26, 1909, succeeded in codifying various important principles of international law in such a satisfactory manner that it is reasonable to assume that it will be generally accepted. The community of nations, therefore, has an International Court of Prize and a substantial body of law for the guidance of the court charged with its administration and interpretation. Articles 7, 8, and 9 of the prize convention are henceforth unobjectionable. Article 7. If a question of law to be decided is covered by a treaty in force between the belligerent captor and a Power which is itself or whose subject or citizen is a party to the proceedings, the court is governed by the provisions of the said treaty. In the absence of such provisions, the court shall apply the rules of 316 THE AMEEICAN JOURNAL OF INTERNATIONAL LAW international law. If no generally recognized rule exists, the court shall give judgment in accordance with the general principles of justice and equity. The above provisions apply equally to questions relating to the order and mode of proof. If, in accordance with Article 3, 2, c, the ground of appeal is the violation of an enactment issued by the belligerent captor, the court will enforce the enactment. The court may disregard failure to comply with the procedure laid down in the enactments of the belligerent captor, when it is of opinion that the consequences of complying therewith are unjust and inequitable. Article 8. If the court pronounces the capture of the vessel or cargo to be valid, they shall be disposed of in accordance with the laws of the belligerent captor. If it pronounces the capture to be null, the court shall order restitu- tion of the vessel or cargo, and shall fix, if there is occasion, the amount of the damages. If the vessel or cargo has been destroyed, the court shall determine the compensation to be given to the owner on this account. If the national court pronounced the capture to be null, the court can only be asked to decide as to the damages. 6 Article 9. The contracting Powers undertake to submit in good faith to the decisions of the International Prize Court and to carry them out with the least possible delay. So far the nature and jurisdiction of the court of prize, the rela- tion of its judgments to decisions of national courts and the law to be administered by it have been discussed. These subjects presuppose the existence of judges, for without judges, while we may have a project, we can not have a court. Now judges may be of two kinds as regards permanency. They may be chosen for a particular con- troversy as is the case with the so-called Permanent Court of Arbi- tration, or they may be selected at least for a period of years as is, and always must be, the case in a veritable court of justice; other- wise there is no continuity between its decisions, there is no neces- sary or natural connection between their judgments, and there is • Article 8 is thus modified by the Additional Protocol for such nations as care to avail themselves of it: Art. 2. In the case of recourse to the international court of prize, in the form of an action for damages, Article 8 of the convention is not applicable; it is not for the court to pass upon the validity or the nullity of the capture, nor to reverse or affirm the decision of the national tribunals. If the capture is considered illegal, the court determines the amount of dam- ages to be allowed, if any, to the claimants. THE INTERNATIONAL COURT OF PRIZE 317 lacking the esprit de corps as essential in a court as in any other organization. The German project proposed a court of five judges, three of whom were to be drawn from the panel of the so-called Permanent Court of Arbitration, and to those selected by the belligerents were to be added two naval officers, likewise selected by the belligerents. According to the German conception there would be no actual prize court There would, however, exist machinery for its creation. Great Britain, on the other hand, proposed a court to be created by the signatories, and to be either in session or ready for session at any given moment, because the judges to be chosen from the eight states possessing mercantile tonnage of eight hundred thousand tons would be pledged by the oath of their office to assemble upon notice. As the result of much discussion, concession and compromise, it was eventually decided that the court should consist of fifteen judges, jurists of known proficiency in questions of international maritime law, and of the highest moral reputation; that these judges should be ap- pointed within six months after the ratification of the prize conven- tion (Article 10) ; and that they should hold office for a period of six years, subject, however, to reappointment. (Article 11.) The judges thus chosen and appointed are to enjoy outside of their country diplomatic privileges and immunities in the performance of their duties, and before assuming their duties must swear or make a solemn promise before the Administrative Council to discharge their duties impartially and conscientiously. (Article 13.) Of the fifteen judges composing the court, nine constitute a quorum, and an absent judge is replaced by a deputy, so that the panel may be full. Of the fifteen judges, one is to be appointed by each of the following countries: Germany, the United States of America, Austria-Hungary, France, Great Britain, Italy, Japan, and Bussia, and the judges thus selected are always summoned to sit. While the larger maritime countries are thus allowed permanent representa- tion, it would be manifestly unfair to exclude from the court smaller nations whose interest is as keen though not materially so great. The smaller states are, therefore, authorized to appoint judges for the full period of six years, but they are only called upon to serve 318 THE AMEEICAN JOUBNAL OF INTEBNATIONAL LAW for a portion of the period for whieh they are appointed, in accord- ance with the table of rotation annexed to and forming part of Article 15. But it may well happen that one of the smaller states at war is not represented upon the court. In such a ease provision is made by Article 16 of the convention to admit its judge during the trial of a case in which it is interested, and to exclude by lot a judge who would otherwise be qualified to sit. It will be recalled that the German project provided that a naval officer should be a member of the court and take part in the decision of the cases. However acceptable this idea may have been to the war lords of the Continent, it found no favor with Great Britain and the United States, which countries desired a court composed of judges acting under a sense of judicial responsibility, from which naval officers would necessarily be excluded. As was wittily said by Mr. Choate, " the duty of the admiral is to provide cases for the court, not to decide them." Although the presence of a naval expert might be of no little service in explaining the technicalities of the ease, it appeared to some delegates to be a derogation from his high station to summon him as a witness. It was, therefore, eventu- ally decided in the broad spirit of compromise, largely upon the initiative of Mr. Choate, that The belligerent captor is entitled to appoint a naval officer of high rank to sit as assessor, but with no voice in the decision. A neutral Power, which is a party to the proceedings or whose subject or citizen is a party, has the same right of appointment; if as the result of this last provision more than one Power is concerned, they must agree among themselves, if necessary by lot, on the officer to be appointed. (Article 18.) It is evident, therefore, that the court of prize is, in the strict technical sense of the word, a court of justice. And in further evidence of this fact, if indeed additional testimony be necessary, Article 17 provides that No judge can sit who has been a party, in any way whatever, to the sentence pronounced by the national courts, or has taken part in the case as counsel or advocate for one of the parties. No judge or deputy judge can, during his tenure of office, appear as agent or advocate before the International Prize Court, nor act for one of the parties in any capacity whatever. THE INTEBNATIONAL COUET OF PEIZE 319 Not only are the judges to be judges by profession and jurists of repute, but they are thus forbidden to have taken part in the decision of the case in the national court, and they may not appear as agents or advocates before the court, nor act for one of the parties in any capacity other than a judicial capacity, during the tenure of their office. The court is an actual, existing court, because within six months after the ratification of the prize convention the judges are to be appointed and ready to proceed to the work when summoned. The court is thus permanent, although in recess. It is noted that the convention considers the possibility that the judges may be called at any time to The Hague for the performance of their judicial duties, and Article 20 of the convention provides traveling allow- ances for the judges in accordance with the regulations in force in their own countries. In addition, the judges receive the sum of one hundred florins per diem (a sum amounting to about forty dollars in American currency), when actually engaged in judicial duties. It can not be said that the fees and appurtenances belonging to the office are princely, but the honor is. If it be borne in mind that the judges of the court do not devote their exclusive time to it, that they no doubt will be in many cases, high salaried officials or professors in law schools of repute, from which a leave of absence can readily be obtained, the compensation is not so insignificant as it might other- wise seem. However this may be, the framers of the convention were determined to exclude from the panel of prospective judges, politicians and worldlings, to whom the salary could be the slightest inducement, and in order to cut off the hope of reward for sub- serviency to national interests, and to free the judges from the slightest suspicion of currying favor, they are forbidden by Article 20 to " receive from their own government or from that of any other Power any remuneration in their capacity of members of the court." It should be stated that the court is to sit at The Hague and may not be transferred elsewhere, except in the case of force majeure, without the consent of the belligerents. (Article 21.) It should also be noted that it determines its language and the languages to be used before it, with the proviso, however, that the official lan- guage of the national court from which the appeal is lodged, may 320 THE AMERICAN JOURNAL OF INTERNATIONAL LAW be used. (Article 24.) It is hardly necessary to add that the liti- gating nations may appoint special agents, counsel, or advocates to serve as intermediaries between the court and to defend national rights and interests (Article 25), and that a private litigant has the right to be represented by a lawyer of standing. (Article 26.) It is also provided that the court possesses the power to summon witnesses or experts to appear before it, even although the requests are to be addressed to the foreign government. (Article 27). It is necessary to consider very briefly the procedure before the court of prize, whose nature, jurisdiction, and composition has been determined. As has been frequently stated, the court of prize is a court of appeal and an appeal to it is taken " by means of a written declaration made in the national court which has already dealt with the case, or addressed to the International Bureau ; in the latter case the appeal can be entered by telegram." (Article 28.) In other words, the litigating nation or party may make formal statement in the national court of the intention to appeal the case, or, if preferable, may notify the International Bureau at The Hague of the intention to appeal, even by means of a telegram. 7 But the right of appeal must be exercised within limits, for the question at issue must be decided within a certain period of time. Article 28 of the convention fixes this period at one hundred and twenty days counted from the date of the delivery of the decision or its notification. "Upon notice of appeal made in a national court it becomes its duty to transmit to the International Bureau the record of the case within seven days. If, however, the notice is sent directly to the International Bureau, the Bureau immediately informs the national court, preferably by telegraph, whereupon the docket of the case is to be transferred to the International Bureau within the specified period of seven days- If the appeal is by an individual, the International Bureau informs 7 In the alternative procedure provided by the Additional Protocol Article 28 is thus modified: Aet. 5. In derogation of Article 28, paragraph 1, of the convention, the suit for damages can only be brought before the international court of prize by means of a written declaration addressed to the International Bureau of the Permanent Court of Arbitration; the case may even be brought before the bureau by telegram. THE INTERNATIONAL COURT OF PRIZE 321 his government by telegraph so as to enable it to decide whether or not it will intervene on behalf of its citizen or subject, or forbid him to bring the case before the court as provided in Article 4, paragraph 2, of the convention. (Article 29. ) 8 If the two years expire within which an appeal may be prosecuted in the national court, or if the national court has failed within two years to pronounce its judgment, the notice of the appeal is to be addressed only to the International Bureau and must be entered within thirty days after the expiration of the period of two years (Article 30), unless the appellant can show that he was prevented from perfecting his appeal within the period of thirty days by force majeure, and that the appeal was entered within sixty days after the circumstances which prevented him entering it before had ceased to operate. (Article 31.) The appeal is then before the International Court of Prize, and the proceedings then to be taken are first, the written pleadings and second the oral discussions. The written pleadings consist of the deposit and exchange of cases, counter-eases, and, if necessary, of replies, of which the order is fixed by the court, as also the periods within which they must be delivered. The parties annex thereto all papers and documents of which they intend to make use. A certified copy of every document produced by one party must be communicated to the other party through the medium of the court. (Article 34.) After the close of the pleadings, a public sitting is held on a day fixed by the court. At this sitting the parties state their view of the case both as to the law and as to the facts. The court may, at any stage of the proceedings, suspend speeches of counsel, either at the request of one of the parties, or on their own initiative, in order that supplementary evidence may be obtained. (Article 35.) s Article 29 is thus modified by the Additional Protocol: Art. 6. In derogation of Article 29 of the convention the international bureau shall notify directly, and if possible by telegram, the Government of the belli- gerent captor of the declaration of action brought before it. The Government of the belligerent captor, without considering whether the prescribed periods of time have been observed, shall, within seven days of the receipt of the notification, transmit to the international bureau the case, append- ing thereto a certified copy of the decision, if any, rendered by the national tribunal. 322 THE AMERICAN JOURNAL OF INTERNATIONAL LAW As the purpose of the court is to ascertain the facts which produce the controversy, before applying the law, it follows that supple- mentary evidence may be taken, either before the court, or by one or more of its members. (Article 36.) It likewise follows that if a party to the controversy duly summoned does not appear, the court shall proceed and deliver a judgment in the case as submitted. The importance of this provision justifies the quotation of the exact text of the convention: If a party does not appear, despite the fact that he has been duly cited, or if a party fails to comply with some step within the period fixed by the court, the case proceeds without that party, and the court gives judgment in accordance with the material at its disposal. (Article 40.) In order to decide the case properly it is necessary that all the facts, evidence and oral statements be considered, and Article 42 imposes this as a duty upon the court. In reaching its conclusion the court meets in private and the proceedings are secret, and all questions are decided by a majority of the judges present. In case of a tie, the vote of the junior judge is not counted. (Article 43.) It is of the highest importance for the development of international law not merely that the case presented be definitely decided, but that it be correctly decided by the application of correct principles of law to the facts as found; therefore, both for the protection of the court and for the development of international law, it is essential that the judgment give the reasons on which it is based. It is like- wise advisable that the judgment contain the names of the judges taking part in it, as well as of the assessors, if any, and that the judgment for purposes of authenticity be signed by the president and registrar. Such are the requirements of Article 44. Publicity of proceedings, as far as consistent with the order and despatch of business, is expedient. Article 45 provides that the sentence be pronounced in public sitting, that the parties concerned are present, or summoned to attend, and that the sentence is com- municated officially to the parties. As, however, the prize court is a court of appeal, it is essential that the record of the case, including copies of the decisions and minutes of the proceedings, be communi- THE INTERNATIONAL COTJKT OF PRIZE 323 cated officially by the court to the municipal court from which the appeal was taken, and such is the requirement of Article 45. 9 It is to be hoped that the court will draw to it cases of importance ; at the same time, frivolous appeals should be discouraged. (Article 46. ) It would be improper, however, that the individual litigants be taxed for the general expenses of the court, for just as a national court is supported at the expense of the nation, the general expenses of the court of appeal should be borne by the signatory Powers, re- quiring, however, each party to pay its own individual costs in actual litigation, as is the practice of national courts. (Article 47.) A careful examination of the convention as a whole shows that many of the functions of the court may properly be exercised by a judicial committee. Therefore Article 48 provides that certain of its duties may be performed by a delegation of three members appointed by the court. It is of the essence of a court that it draw up its rules of procedure, and it is of fundamental importance to prospective liti- gants and counsel that the procedure be known in advance. There- fore, Article 49 specifically invests the court with this power and duty, and provides that the court shall meet within a year of the rati- fication of the present convention to formulate its rules of procedure. However carefully a code is drawn, experience suggests modification and improvements ; therefore, Article 50 provides that " The court may propose modifications in the provisions of the present convention concerning procedure." But as a court is the creature of the con- tracting Powers, it is wisely determined that the proposal shall be communicated by the Netherland Government to the contracting parties, which will, perhaps, adopt the proposed changes and take concerted action upon them. (Article 50.) From this rapid survey, it is evident that the Second Hague Con- ference was able to, and did actually create a court for the trial and decision of international controversies arising out of maritime war- » Article 45 is thus modified by the Additional Protocol : Art. 7. In derogation of Article 45, paragraph 2, of the convention the court rendering its decision and notifying it to the parties to the suit shall send directly to the Government of the belligerent captor the record of the case sub- mitted to it, appending thereto a copy of the various intervening decisions as well as a copy of the minutes of the preliminary proceedings. 324 THE AMERICAN JOURNAL OF INTERNATIONAL LAW fare, and furnished at one and the same time a precedent for the establishment of an international tribunal for the trial and judicial settlement of the international controversies arising in time of peace. If by special agreement the contracting Powers should invest the In- ternational Court of Prize with the jurisdiction of the proposed Court of Arbitral Justice, the world would possess a truly permanent and adequate international judiciary and realize the hopes and aspira- tions of those who believe that force itself is not above the rules of law. In concluding, an apt passage is quoted from President Roose- velt's message to Congress in 1907 : Any one who recalls the injustices under which this country suffered as a neutral Power during the early part of the last century can not fail to see in this provision for an international prize court the great advance which the world is making towards the substitution of the rule of reason and justice in place of simple force. Not only will the international prize court be the means of protecting the interests of neutrals, but it is in itself a step towards the creation of the more general court for the hearing of international controversies to which reference has just been made. The organization and action of such a prize court can not fail to accustom the different countries to the submission of international ques- tions to the decision of an international tribunal, and we may confidently expect the results of such submission to bring about a general agreement upon the enlargement of the practice. James Brown Scott.